VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
Administrative DIVISION
REVIEW AND REGULATION LIST	
vcat reference No:Z849/2019	
CATCHWORDS	
Review and Regulation List – Racing Act 1958 (Vic), section 83O – Tribunal’s power on review to make any decision or order that it considers is required in the interests of justice, including the imposition of any penalty under the rules – greyhound disqualified from race after guilty finding on presentation offence – loss of first place and $100,000 prize money – whether section 83O extends to not imposing disqualification – whether disqualification is mandatory under the rules – if there is a discretion as to disqualification, whether it ought to exercised in the circumstances of this case.	

APPLICANT	Harry Manolitsis	
RESPONDENT	Greyhound Racing Victoria 	
WHERE HELD	Melbourne	
BEFORE	A Dea, Senior Member	
HEARING TYPE	Hearing via videoconference 	
DATE OF HEARING	19 April 2022	
DATE OF ORDER and REASONS 	15 June 2022	
CITATION	Manolitsis v Greyhound Racing Victoria (Review and Regulation) [2022] VCAT 644	

Orders
1	The 22 July 2019 decision of the Racing Appeals and Disciplinary Board (RADB) to impose a fine of $1,000 on the applicant, with $750 suspended for 12 months pending no further breach of GAR 83(2) is affirmed.
2	Elevated is disqualified from the Sapphire Crown race at Sandown on 24 May 2018.

A Dea
Senior Member 			
APPEARANCES:		
For Applicant	Mr L Hogan, counsel	
For Respondent	Ms R Sharp, counsel 	
Reasons
1	On 22 July 2019, the Racing Appeals and Disciplinary Board (RADB) found that the applicant, Mr Harry Manolitsis, a greyhound trainer, had breached greyhound racing rules by failing to present Elevated free of any prohibited substance in the Sapphire Crown race at Sandown on 24 May 2018 (the Race).  Elevated won that race and was awarded the $100,000 prize money.
2	A urine sample taken from Elevated prior to the Race was clear – it did not test positive for any prohibited substance.  A blood test was taken post-Race and that tested positive for carprofen, a prohibited substance.  That result was not known until 3 July 2018 by which time Mr Manolitsis had been paid the prizemoney.  He returned the funds after he was notified of the positive result.  
3	Greyhound Racing Victoria (GRV) laid three charges against Mr Manolitsis.  Mr Manolitsis decided to plead guilty to the presentation charge and GRV agreed to withdraw the other two.  Given the positive test result and guilty plea, the RADB found the charge proven.  It decided to impose a penalty of a fine of $1,000 ($750 of which was suspended pending no further breach of the same rule for 12 months) and Elevated was disqualified from the Race (the Disqualification Decision).  As a consequence of Elevated being disqualified, the placings were amended.
4	Mr Manolitsis applied to the Tribunal for review of the RADB’s decision.  The hearing of his application has been delayed by appeals in a related case which have been before the Supreme Court of Victoria and the Court of Appeal of the Supreme Court of Victoria.
5	While Mr Manolitsis says he does not dispute the guilty finding, he contends that the Disqualification Decision should be set aside and substituted with a decision that Elevated was the winner of the Race.  That would, of course, mean the prize money would be restored.
6	Mr Manolitsis relies on two grounds for that position.  First, he contends that the RADB could have exercised its discretion in September 2019 to make such a decision, under the then applicable Racing Act 1958 (Vic) (2018 Racing Act) and so, on review before this Tribunal, the same decision could be made now.  The second ground is that, if that discretionary power exists, the Tribunal should decide in the circumstances of this case, to set aside the Disqualification Decision.  The two circumstances relied on concern a factual question about whether Elevated had carprofen in its system when it raced and whether, having complied with applicable withholding guidelines (Withholding Guidelines) it would be capricious or unjust to maintain the Disqualification Decision.
7	GRV disputes both of the above grounds.  It says that, under the applicable rules, the Disqualification Decision was an automatic consequence of the presentation charge having been proved and so is not a penalty about which the RADB could have exercised a discretion.  Likewise, it says this Tribunal has no discretion about disqualification on review as it exercises the same powers as the RADB.  It also says that, even if there was a discretion, it ought not to be exercised in this case.
8	After considering the parties’ written and oral submissions, I have concluded that it is not open to this Tribunal to decide not to disqualify Elevated under section 83O(1)(b) of the 2018 Racing Act.
9	Even if I were incorrect about that, I would not exercise the discretion to set aside the Disqualification Decision in this case as I have not found the circumstances in this case to be such that the interests of justice require or justify either that the placings be restored or that no fine be imposed.  Accordingly, I have confirmed the RADB’s decision in its entirety. 
The Tribunal’s powers on review 
10	In 2018, amendments were made to the 2018 Racing Act which established the Victoria Racing Tribunal (VRT) and gave it powers to hear certain matters which had previously been heard by this Tribunal when reviewing RADB decisions.  Relevantly, the amendments removed this Tribunal’s  power to review the merits of liability related decisions so it could only review penalties imposed by the newly established VRT.  The amendment also meant that, in reviewing such matters, the Tribunal was bound by the VRT’s findings of fact.  
11	The amending legislation, contained transitional provisions addressing the status of applications for review where the decision to be reviewed was before the RADB. 
12	Controversy about how certain categories of cases were to be dealt with in this Tribunal was resolved when the Court of Appeal of the Supreme Court of Victoria decided Douglas v Harness Racing Victoria in May 2021.  Relevant here, the effect of that decision (which has application across all forms of racing regulated by the 2018 Racing Act) was that, in certain cases including this one, the Tribunal has all of its previous powers to consider and make findings about facts and penalties and is not bound by decisions of the RADB.
13	That means, in this case, the Tribunal’s role is to make the correct and preferable decision under the 2018 Racing Act, exercising all of the RADB’s powers and functions.  Those powers included the discretionary powers under section 83O(1) which said: 
(1) 	In the determination of any matter before the [RADB], the [RADB] may –
(a)  	decide all questions of fact; and
(b) 	make any decision or order that the [RADB] considers is required in the interests of justice, including the imposition of any penalty under the rules.
14	When standing in the RADB’s shoes on review, the Tribunal has the power to affirm or vary the decision or to set aside the decision and substitute a fresh decision.  
The rules 
15	Section 82(1) of the 2018 Racing Act provided that GRV may make rules for or with respect to the control of the sport of greyhound racing in Victoria including rules for or with respect to ‘fines, and any matter whatsoever which [GRV] is by or under this or any other Act required or empowered to administer or perform’.
16	It is well understood that rules such as those made by GRV have effect as a matter of contract law and as a form of delegated legislation.
17	In Victoria, the applicable rules are the Greyhounds Australasia Rules (GAR) and the Local Rules (LR).  In these Reasons, those are referred to collectively as the ‘Rules’.
18	Relevant to this proceeding, GAR 83 includes the following:
(2) 	The owner, trainer or person in charge of a greyhound – 
(a) 	nominated to compete in an Event; 
. . . 
shall present the greyhound free of any prohibited substance. 
(3) 	The owner, trainer or person in charge of a greyhound presented contrary to sub-rule (2) shall be guilty of an offence. 
(4) 	A greyhound presented for an Event contrary to sub-rules (1) or (2) shall be disqualified from the Event or any benefit derived from a trial or test. 
(5) 	Where an Event is being or has been conducted as a series, if upon a single analysis a prohibited substance is found in a sample – 
(a) 	the greyhound shall be disqualified from the Event from which the sample was taken and shall not be eligible to compete in any further Event in the series; and 
(b) 	if the greyhound has competed in any further Event of the series the greyhound shall be disqualified retrospectively from the Event.
19	The terms ‘presentation’ and ‘presented’ are defined as follows (italics my emphasis):
a greyhound is presented for an Event from the time commencing at the appointed scratching time of the Event for which the greyhound is nominated, and continues to be presented until the time it is removed from the racecourse after the completion of that Event with the permission of the Stewards pursuant to Rule 42(2) or is scratched with the permission of the Stewards.
20	The term ‘penalty’ is defined in the GAR to mean (italics my emphasis):
a fine, disqualification, suspension, warning off, cancellation of registration, declaration of defaulter, order of prohibition and any other determination, decision, order or other matter imposed or made pursuant to these Rules by which a person or a greyhound suffers or incurs a disadvantage, detriment or any restriction whatsoever.
21	GAR 10 provides that, to the extent that a Rule is inconsistent with a regulation contained in the 2018 Racing Act or regulations, then that Act prevails.
The scope of section 83O(1)(b) of the 2018 Racing Act 
The breadth of the power
22	Mr Manolitsis relied on the Tribunal decision of GRV Stewards v RADB Greyhound Racing (GRV Stewards) to contend that section 83O(1)(b) contains a broad power and that penalty determination is a sub-set of the power to make any decision or order in the interests of justice.  
23	In that case, a greyhound had been presented for a race and, a post-race sample, revealed the presence of a prohibited substance.  The RADB found the trainer guilty of a breach of GAR(2) and decided to disqualify him.  The effect of the disqualification under the Rules was to automatically cancel his registration and also to ban him from any participation in greyhound racing, which included attending trials.  After taking into account the ‘miniscule’ amount of the drug detected which had no impact on its performance and the trainer’s good character, the RADB permitted him to attend trials after he had served the first three months of a total six month disqualification period.  
24	GRV sought review of the decision and contended that neither the RADB nor the Tribunal had power to allow a disqualified trainer to attend trials.  SM Proctor decided that there was a discretion to make that decision.  
25	When describing the nature of the power in section 83(1)(b), SM Proctor described the grammatical meaning as ‘clear’.  He referred to the opening words ‘make any decision or order that the Board considers is required in the interests of justice’ as striking.  At paragraph 37, he said:
37. 	Parliament must have intended that the words ‘make any decision or order that the Board considers is required in the interests of justice’, which have a broad and powerful effect, had work to do in the provision. Otherwise, s 83(1)(b) could easily have been drafted omitting reference to the decisions considered in the interests of justice.
26	In this case, GRV conceded that the section 83O(1)(b) power was broad in scope, but asserted that it was not unlimited in nature.  It contended that, properly construed, the provision did not extend to ‘the effective abrogation, rewriting or amendment’ of the Rules which GRV had validly adopted in accordance with its legislative rule making power conferred by section 82 of the 2018 Racing Act.
27	It contended that the case of GRV Stewards was quite different to the circumstances before me and did not provide support for Mr Manolitsis’ position as to the application of GAR 83(4).  It contended GRV Stewards could be distinguished because the issue there was whether the Tribunal had a discretion to make an adjustment to a specific consequence of a disqualification order – in that case whether the trainer could attend trials.  The relevant Rules contained an express discretion as to that matter (and the other limitations contained in GAR 99 and GAR 99(2)).  GRV contended GAR 83(4) was quite different as it contained no express discretion in respect of the disqualification of the greyhound from the race and hence disqualification was mandatory for the purposes of the Rules and section 83O(1)(b) off the 2018 Racing Act. 
28	I agree that aspect of GRV Stewards makes it distinguishable, however, the views expressed as to the nature of the power in section 83O(1)(b) may still be accepted.  Accordingly, I agree with SM Proctor’s characterisation of section 83O(1)(b) as being broad and as allowing the RADB (and the Tribunal on review) to make any order or decision it considers to be in the interests of justice including as to the ‘imposition of any penalty under the rules’. 
Disqualification and capriciousness in interpreting the Rules
29	Mr Manolitsis contended that the phrase ‘shall be disqualified’ as used in GAR 83(4) is not mandatory in the context of the Rules and the 2018 Racing Act more generally, and authority allows it to be construed in a manner which will avoid capricious results.
30	I was referred to Statutory Interpretation in Australia (8th edn), DC Pearce and RS Geddes, at 11.3 which says:
The principal guide adopted by the courts in determining whether a provision imposes a duty or is merely facultative is to examine the effect of interpreting the provision one way or the other.  If the court is satisfied that the object of the Act (or the provision in question) would be defeated if a task were not carried out by a person or body, it will rule that the provision is obligatory and the possessor of the power has no discretion but to exercise it.
31	Reliance was also placed on the principle that:
i. 	an absurd, unreasonable, anomalous or capricious consequence and may depart from a literal interpretation of a provision where the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions;15 or
ii. 	unjust outcomes or so as to impose less hardship on a subject where such a construction is available.
32	Mr Manolitsis contended that the object of GAR 83(4) is to ensure racing occurs without the presence of prohibited substances that may alter the natural outcome of races.  However, he says that object is not met by disqualifying Elevated because there is a factual question about whether Elevated in fact raced with carprofen in its system.  Leaving that factual question to one side for the moment, I have considered the broader question of whether it would be capricious or unjust to treat GAR 83(4) as mandatory.
33	Mr Manolitsis’ counsel proffered the following as an admittedly extreme example in order to illustrate how capricious outcomes could arise if GAR 83(4) was applied mandatorily:  A greyhound wins a race, but is badly injured afterwards in the catching pen.  The greyhound is treated on-course by the veterinarian, who gives it pain relief and anti-inflammatories.  Tested, that dog then has those prohibited substances in its system.  Given that the definition of ‘presented’ includes the time up to when the greyhound leaves the course, the trainer can be found to have contravened GAR 83(2). 
34	Mr Manolitsis submitted that, in those circumstances, a mandatory GAR 83(4) consequence – ‘taking the race (and prizemoney) away’ – would meet no rational regulatory object.  Instead, the object was said to be met by the Tribunal considering whether or not to disqualify the greyhound, with discretion not to do so.
35	GRV made submissions about the purpose of and the importance GAR 83(4) plays when it comes to integrity in greyhound racing.  It contended that: 
•	The requirement that greyhound races are conducted drug free, and that racing results (and associated betting markets and outcomes) are unaffected by prohibited substances capable of affecting performance, is a non-negotiable principle which is critical to the survival of the sport; 
•	The existence of that fundamental principle is not informed, and is entirely unaffected or impacted, by the question of what caused, or who might be to blame for the presence of the relevant prohibited substance detected in the swab taken from the racing greyhound in question.  If the industry is to maintain its integrity in the eyes of its participants, the betting public, and the general public, greyhounds must compete, and be presented to compete and race in events, free of prohibited substances, irrespective of the cause;
•	The plain terms of GAR 83(4) are such that the greyhound is to be disqualified in any and all instances in which it has been presented for an event contrary to GAR 83(2).  GAR 83(2) is itself a strict liability offence, in respect of which it has been recognised that it is not of concern to decision makers to be satisfied as to how a prohibited substance found its way into the subject greyhound and it is no defence for the relevant person charged to deny any knowledge of how the prohibited substance came to be detected;
•	GAR 83(4) is a rule which:
o	is essential to the protection of the integrity of the greyhound racing industry, without which the industry could not continue to operate with the confidence of participants, the betting public, and the general public alike; and
o	is thereby critical to the GRV’s control of the sport of greyhound racing in Victoria.
36	The first point to make is that the circumstances in Mr Manolitsis’ example did not arise in this case – the relevant treatment with a prohibited substance occurred before the race and there is no dispute that the carprofen was administered by Mr Manolitsis.  
37	In my view, if there was any discretion to be exercised in the above example, it would likely arise when Stewards consider laying a charge.  I anticipate that the treating veterinarian’s independent records would disclose that the relevant substance was administered post-race and in response to injury and common sense might have led the Stewards to not lay a charge at all, notwithstanding the definition of ‘presentation’ extending to when the greyhound is removed from the racecourse.  Alternatively, GAR 98 could be relied on to not make a finding of guilt or to not impose a penalty.  It is not necessary or of assistance to consider the example further.
38	Assuming for the moment GAR 83(4) is mandatory, I accept GRV’s submissions about the role to be played by GAR 83(4) in promoting integrity and in support of general deterrence.  
39	I accept that GAR 83(4) may appear harsh in a case where it is not known how the substance came to be present in the greyhound.  However, in the context of what is accepted to be a strict liability offence, the disqualification rule ensures that the outcome of the race is restored to being as between drug-free competitors only.  Hence, it is not capricious but rather entirely consistent with upholding integrity in greyhound racing.  
40	It would seem to me to be ‘absurd, unreasonable or anomalous’ to allow prize money to be kept despite a winning greyhound having been proven to have had prohibited substances in its system.  Taking that path would undo an essential aspect of the strict liability offence of presentation.  I say that in circumstances where the discretion as to the penalties in GAR 95 allows for individual circumstances to be taken into account when imposing all other outcomes.  
Is disqualification a penalty or a mandatory and automatic consequence under GAR 83(4)? 
41	GRV contended that a disqualification order under GAR 83(4) is not a penalty but rather an automatic consequence of a finding of breach of GAR 83(2).  Accordingly, it contended that neither the RADB nor the Tribunal on review has any discretion to exercise under section 83O(1)(b) of the 2018 Racing Act when it comes to the Disqualification Decision. 
42	GRV referred me to decisions where it was plain that the RADB and other tribunals dealt with disqualifications under GAR 83(4) (and equivalents in the rules of other racing codes) as following directly on from a breach rather than as a separate exercise of a discretionary decision making power.  
43	They included a 2000 Victorian Racing Appeals Tribunal decision where the Tribunal concluded the appellant was totally ignorant as to how the particular greyhound had the drug in its system and it was accepted that the appellant ‘had an absolutely blameless record’.  That Tribunal said:
The [relevant rule] is quite clear that any greyhound which competes in an event and is found, upon testing, to be the recipient of a drug shall be disqualified from that event.  So there is no discretion in the Stewards, of the Control Board, or for that matter this Tribunal, in any way to do other than disqualify that greyhound.  So the appeal against disqualification of the greyhounds is dismissed. 
44	I was also referred to Greyhound Racing New South Wales Stewards v Vella & Genner.  The Greyhound Racing Appeals Tribunal was required to consider an appeal filed by the trainer (Mr Vella) and part-owner (Mr Genner) of a greyhound which had returned a positive post-race swab to the prohibited substance caffeine after winning the race.  Mr Genner had played no part in, and was otherwise blameless for, the administration of the prohibited substance to the greyhound.
45	Despite the absence of any blame or moral culpability on the owner’s part, the Tribunal held: 
In the case of Mr Genner’s appeal regarding the disqualification of Spotted Title from both events, the Tribunal considers that the disqualifications were an inevitable consequence of the finding of a prohibited substance in the greyhound when it won the qualifying heat…
Arguments as to the minimal effect of the drug do not take into account the interests of other trainers and owners whose greyhounds compete in a race against a greyhound that is found to be drugged.  The disqualifications of Spotted Title were a proper result having regard to the interests of other owners and trainers, and the appeal against those disqualifications is dismissed.
46	As to the interpretation question, GRV contended that, where the words in the GAR themselves state that the greyhound ‘shall’ be disqualified, it is apparent that there is no discretion to be exercised.  
47	That contention relied on section 45(2) of the Interpretation of Legislation Act 1984 (Vic) (Interpretation Act).  Relevantly, section 45(2) of the Interpretation Act provides that, where an act or subordinate instrument uses the word ‘shall’ in conferring a power, that word:
shall be construed as meaning that the power so conferred must be exercised.  
48	In addition to relying on the submission regarding capriciousness, Mr Manolitsis contended that the phrase ‘shall be disqualified’ as used in GAR 83(4) was not mandatory in the context of the Rules and the 2018 Racing Act more generally.  
49	While the Interpretation Act may not apply strictly to the GAR or the Rules more generally, I agree that it assists in interpreting those. 
50	I disagree with Mr Manolitsis’ contention that the subject phrase in GAR 83(4) is not mandatory in the context of the Rules.  The Interpretation Act certainly supports that reading.
51	Also, the GAR uses ‘shall’ in a range of other circumstances which indicate it is a mandatory direction.  They include GAR 83 and 86 which use the term repeatedly to identify conduct which, if proven, ‘shall’ amount to guilt of an offence.  
52	Notably, GAR 95, which contains the penalties which may be imposed by the Controlling Body or the Stewards, says a person found guilty ‘shall, at the discretion of’ the relevant entity, be liable for any one or a combination of penalties.  GAR 95(2) gives the disciplinary entity a discretion to impose a prospective disqualification or suspension on a greyhound owned by a person who has been disqualified or suspended – the greyhound may be disqualified or suspended for the equivalent or another period of time.  
53	Mr Manolitsis’ submissions referred me to GAR 98(1) which provides that the relevant entity has a discretion to not record a finding of guilt or impose a penalty and instead discharge the person, despite the charge being proven.
54	So, as agreed by the parties, it is clear from express words in the GAR that, even where an offence is proven, the penalties in GAR 95 are discretionary.  
55	By contrast, GAR 83(4) contains no words indicating a discretionary power has been conferred.  Words of that kind are also missing from GAR 83(5) which deals with positive tests where the greyhound was nominated to compete in a later event or has already competed in other events in a series.  
56	I acknowledge that the definition of ‘penalty’ in the GAR is very wide and applies to people and greyhounds in respect of ‘any other determination, decision, order or other matter imposed . . . by which a person or greyhound incurs a disadvantage or detriment’.  Considering that definition in isolation, it may be arguable that the Disqualification Decision is better described as a penalty for the purposes of the Rules.  I have concluded that, when read in context and when considered with the matters canvassed above, that is not the preferred characterisation.
57	I accept GRV’s submissions that the use of the word ‘shall’ is significant, as is the fact that GAR 83(4) falls within the offence provisions rather than in the penalty provisions.   
58	Accordingly, I find that disqualification under GAR 83(4) is mandatory where a breach of GAR 83(1) has been proven.  I further find that it is not to be regarded as a penalty for the purposes of GAR 95.
Is disqualification a penalty under section 83O of the 2018 Racing Act?
59	Consistent with the earlier discussion of Vella and Genner, I proceed on the basis that the Disqualification Decision was imposed against an appropriate person, be that the trainer or the owner.  
60	For the reasons given above, I also proceed on the basis that:
•	Disqualification of a greyhound is mandatory following a finding of a breach of GAR 83(2); and 
•	Disqualification is not a penalty under the GAR and is distinct from the imposition of discretionary penalties under GAR 95.
61	I give weight to the cases referred to above which show the racing codes have, for very many years, consistently regarded the disqualification of the relevant greyhound (or horse) when a presentation charge is proven, as automatic and not a discretionary decision.
62	Returning to the discretion as expressed in section 83O(1)(b), the RADB’s power (and that of the Tribunal on review) is to: 
make any decision or order that the [RADB] considers is required in the interests of justice, including the imposition of any penalty under the rules.
63	The penalties being referred to are those contained in the relevant rules and so I find that the penalties which are the subject of the section 83O(1)(b) discretion are those contained in the GAR.  
64	As I have found the Disqualification Decision was not a penalty under the GAR, I find that the correct and preferable reading of section 83O(1)(b) is that the Disqualification Decision is not reviewable under that provision and so is not capable of being the subject of the exercise of a discretion ‘in the interests of justice’. 
Would the factual circumstances support a finding that it was not in the interests of justice to disqualify Elevated? 
65	Even if I were incorrect about the conclusions expressed above as to whether section 83O(1)(b) applies to the Disqualification Decision, for the following reasons, I am not persuaded that the interests of justice would require that Elevated not be disqualified. 
The admitted administration of carprofen 
66	As mentioned earlier, at the hearing before the RADB, Mr Manolitsis pleaded guilty to the charge of presentation in breach of GAR(2).  The relevant facts about that are as follows:
•	On Friday 18 May 2018, Elevated was examined by Dr Desmond Fegan.  He diagnosed a mild sprain to the right wrist and prescribed Rimadyl, which contains carprofen;
•	On Saturday 19 May 2018, one tablet was said to have been given to Elevated by Mr Manolitsis in the evening with food; 
•	That administration was not recorded in the treatment book for Elevated;
•	On Wednesday 23 May 2018, a urine sample taken from Elevated was taken and found to be clear; 
•	At around 5:30pm on Thursday 24 May 2018, Elevated was presented at Sandown for kennelling and a further urine sample was taken.  That sample was also clear;
•	The Race was run at around 7:35pm on 24 May 2018 and Elevated came first;
•	In the period between around 7:30 and 9:25pm after the Race, Elevated was returned to the kennels; 
•	At 9:25pm on 24 May 2018, a blood sample was taken from Elevated; and 
•	On 3 July 2018, Mr Manolitsis was advised that the blood sample had tested positive for carprofen, with an approximate 40ng/ml detected.
67	Dr Fegan made a witness statement on 16 July 2019.  He referred to his long experience in providing care to greyhounds and his involvement in studies regarding commonly used drugs and appropriate withholding periods.  Referring to the withholding period for carprofen as at 1996 and 1997 as being 48 hours (later increasing to 72 hours), Dr Fegan stated that he had recommended a withholding period of 96 hours for greyhounds under his care.  He stated that, when that period was applied, there had never been a resulting positive result to his knowledge.
68	As to Elevated, Dr Fegan stated that he had monitored and treated Elevated throughout her career.  At around 3pm on Friday 18 May 2018, Mr Manolitsis came to his clinic with Elevated and after examining and diagnosing her, he dispensed four 50mg carprofen tablets to be given that day (on the Friday) and the next day, the Saturday.  
69	The Tribunal Book contained a transcript of an interview between Stewards and Mr Manolitsis on 16 July 2018.  In that interview, Mr Manolitsis confirmed he had been given four tablets by Dr Fegan.  He first stated that he had given Elevated one tablet on the Saturday evening and later that he had given Elevated one tablet on the Friday evening.  Following on from the latter statement, he was asked by the Stewards about the whereabouts of the other three tablets.  At first, Mr Manolitsis referred to two he had in his possession during the interview on 16 July 2018 but it appeared that those had been prescribed after the Race.  He then stated he had given the other three (given to him by Dr Fegan) to another dog (a pup) on advice from a different veterinarian.  
70	By the time of the hearing before the RADB (and before me), Mr Manolitsis’ counsel submitted that the evidence was that one tablet had been given on both the Friday and Saturday and that, even if two had been given each day as prescribed, the last treatment was around 120 hours before the Race (on Saturday 19 May 2018, in the evening).
71	Unsurprisingly, given Mr Manolitsis’ guilty plea and the strict liability nature of the presentation charge, the RADB made no specific finding as to the time of administration.
72	As the charge relating to Mr Manolitsis’ failure to record the administration in the treatment book was withdrawn, no finding as to that matter was made by the RADB either.  Having said that, there was no dispute the entry had not been made.
73	Mr Manolitsis contended before me the facts were that, not only had the recommended withholding period (72 hours) passed before Elevated ran on Thursday 24 May 2018, but the period recommended by Dr Fegan (96 hours) had also expired.  
74	As stated at the commencement of these Reasons, following the decision in Douglas, it is open to an applicant to seek review of a RADB decision as to any penalties applied but also as to the findings of fact.  Mr Manolitsis did not give evidence before me as to the timing of the administration of the carprofen or as to other matters.  
75	In effect, I was asked to accept that the administration of only one tablet occurred in the evening of Saturday 19 May 2018, around five clear days before the Race.  Taking the facts at their highest, I have proceeded on that basis.
The test results
76	There were three reports as to the test results.  
77	The first was prepared by Dr Steven Karamatic, Chief Veterinarian, GRV and dated 23 July 2018.  Dr Karamatic stated that carprofen is a non-steroidal anti-inflammatory and that it was within the class of drugs often used for inflammatory conditions.  His report said:
The mechanism of action for carprofen is likely through inhibition of cyclooxygenase, phospholipase AZ and inhibition of prostaglandin synthesis.  In the dog approximately 90% is absorbed after oral administration.  Peak blood levels occur in about 1-3 hours after administration.  The majority of the drug is eliminated in faeces, with 10-20% eliminated in urine.  The elimination half-life is 8 hours in dogs.  
The standard dose rate for carprofen in dogs involves 4.4 mg/kg either once daily or divided into 2.2 mg/kg twice daily.  A suggested [Australian New Zealand Greyhound Association] minimum withholding guideline is 48 hours after a standard 5 day course.  After administration of 25 mg orally to 18 beagles, carprofen was detectable in plasma (at 30-100 ng/mL) for at least 72 hours.
In conclusion, the prohibited substance carprofen that was detected in sample V446273 is capable of affecting the condition or performance of a greyhound with any effect more likely to be positive such as by inducing an artificially pain-free state.
78	No issue was taken with the content of Dr Karamatic’s first report.
79	Mr Paul Zahra, Scientific Manager at Racing Analytical Services Ltd made a witness statement on 19 June 2019.  He referred to the two testing methods used to screen greyhound samples for carprofen – urine and plasma (blood).  He explained that the two methods have different detection capabilities in respect of carprofen, noting that the limit of detection (LOD) for substances in plasma is lower when compared to the corresponding limit of detection in urine.  He then said the following under a heading ‘Possible explanations for a pre-race negative in urine followed by a post-race positive in plasma’ (italics my emphasis):
7. 	The difference in LOD between the methods could therefore result in a detection of carprofen in plasma and a non-detection in urine i.e. if a post-race plasma sample contained carprofen at a concentration greater than the LOD of [the plasma testing method], carprofen would be detected.  If a corresponding pre-race urine sample contained carprofen at a concentration less than the LOD of [the urine testing method], carprofen would not be detected.
8. 	The presence of a substance in a plasma sample does not necessarily mean that substance will also be present in a urine sample taken from the same greyhound.  The metabolism and pharmacokinetics of a substance in a particular species will dictate the absence/presence, and concentration of that substance in urine and plasma after administration.  It cannot simply be implied that the detection of carprofen in a post-race plasma sample will equate to the detection of carprofen in the corresponding pre-race urine sample.
9. 	It is therefore feasible that whilst plasma sample V446273 contained carprofen at a concentration in excess of the LOD of [the plasma testing method], urine sample V525319 either did not contain carprofen, or contained carprofen at a concentration lower than the LOD of [the urine testing method] and therefore was not detected.
80	Dr Karamatic wrote a supplementary report on 3 July 2019 which commented on Mr Zahra’s witness statement.  Under the heading ‘Opinion’, Dr Karamatic said:
7. 	At 72 hours following oral administration of carprofen at 4 mg/kg (e.g. 100 mg tablet to 25 kg greyhound), a greyhound would have a urinary carprofen concentration below the LOD for carprofen.  It would be reasonable to expect the urine concentration to measure less than 3 ng/mL.
8. 	At 72 hours following oral administration of carprofen at 4 mg/kg (e.g. 100 mg tablet to 25 kg greyhound), a greyhound would have a plasma carprofen concentration above the LOD for carprofen. It would be reasonable to expect plasma concentration to measure in the range of approximately 10 - 200 ng/mL.
9. 	It is therefore reasonable to expect that a plasma sample with a concentration of approximately 40 ng/mL would not have carprofen detected in a urine sample.
10. 	Carprofen is a drug of the weak acid class and can therefore ionise from its neutral form to a charged form . If the pH of urine is less (more acidic) than the pH of blood (normal for a pre-race greyhound sample), the neutral form will dominate in the urine, leading to greater reabsorption of carprofen from urine back into blood and therefore reduced levels of carprofen in urine.
11. 	After dosing, virtually all carprofen will be absorbed by the gastrointestinal tract, before 80-90% is eliminated via faeces . Carprofen undergoes enterohepatic circulation meaning not all of the drug that is processed in the liver and passed through bile ends up being eliminated in faeces on the first cycle.  Rather a reasonable amount is reabsorbed back through the gastrointestinal tract and to the liver where it is again either distributed through blood to the body, or further eliminated through bile.  This prolongs the time it takes to eliminate carprofen from the body.
81	Both Dr Karamatic and Mr Zahra were available for cross-examination.  Mr Manolitsis did not require them to attend before me.
82	Mr Manolitsis’ counsel placed great weight on paragraph 9 of Mr Zahra’s witness statement (see paragraph 79 above).  He contended:
10. 	. . . even [on] GRV’s own expert evidence, there is an open possibility that Elevated raced in and won the [Race] without Carprofen in its system, and the substance came to be in the greyhound afterwards.  Video footage of the kennel area where the greyhound was kept for 2 hours after the race, though available as late as August 2018, was not available in 2019.
11. 	The alternative is that Carprofen was in both samples taken from Elevated on 24 May 2018, but beneath detectable levels in the earlier urine test due to pharmacokinetic differences for Carprofen between urine and blood, and detection thresholds.
83	The submissions refer to matters relevant to guidance on withholding periods and the possibility that a longer withholding period ought to have been advised to participants and veterinarians and then said:
14.  	On either scenario - relevant also to penalty - Mr Manolitsis himself is morally blameless, with respect to any detected presence of Carprofen in [Elevated ] on 24 May 2018.
15. 	But, to emphasise: it is open for VCAT to be satisfied that Elevated raced the event without Carprofen in its system.
84	Mr Manolitsis contended that, if GRV had not proved that carprofen was in the greyhound’s system when it raced, that would support the exercise of discretion not to disqualify Elevated from the Race.
85	Mr Manolitsis did not seek to withdraw the guilty plea or give evidence before me about the factual circumstances – as I understood it, the contention was that he did not claim Elevated did not have carprofen in its system noting the wording of the charge referred only to the post-race blood sample result but it was not proven that Elevated had carprofen in its system during the Race.
86	If in truth Elevated had not raced with carprofen in its system and there was no evidence of administration or knowledge on the part of Mr Manolitsis, his counsel contended that it would be capricious for Elevated to be disqualified and so I should exercise the discretion in section 83O(1)(b) of the 2018 Racing Act to decide, in the interests of justice, to set aside the Disqualification Decision..  
87	I accept that Mr Zahra’s witness statement raised as a possibility that Elevated raced without a detectable amount of carprofen in its system for urine testing purposes.  Mr Manolitsis suggests (and no more) that the carprofen came into Elevated’s system in the two hours between the end of the race and when it was taken from the track.  It was suggested that the carprofen was somehow ingested in the kennelling area.  No evidence was called to explain how that might have occurred.  I noted that, when interviewed by Stewards on 16 July 2018, Mr Manolitsis stated no one had handled or even touched Elevated after she left the track and went to the kennels.  
88	It seemed to me that the submission advanced on behalf of Mr Manolitsis failed to pay regard to the fact that the possibility described by Mr Zahra only related to the urine test result and not the blood test.
89	Mr Zahra’s witness statement contained another possibility:  namely that, in lay terms, the blood test was more sensitive than the urine test and the carprofen was in Elevated’s system all along.
90	That possibility was directly addressed in Dr Karamatic’s supplementary report by way of the opinion set out above.  As I understood it, that supplementary report indicated the urine and blood test results were consistent with the manner by which carprofen is metabolised.  
91	Mr Manolitsis submitted that of the two, Mr Zahra had greater expertise in respect of testing than Dr Karamatic.  Even if that were accepted, I am still left with two possible explanations which each include a basis for distinguishing between results of urine and blood tests.  
92	GRV contended that it carried no onus to prove that Elevated had raced with carprofen in its system.  It contended that, once the presentation charge was proven, the Disqualification Decision was the necessary consequence and defences such as that described above (or others concerned with how the substance came to have been in Elevated’s system) were irrelevant.  That was consistent with the submissions which I have accepted as to the purpose of GAR 83(4), its place in the Rules and its role in maintaining the integrity of the industry.  
93	As Mr Manolitsis maintained his guilty plea and he did not challenge the RADB’s finding as to a breach of GAR 83(2), it would be incorrect to impose a strict burden of proof on either party. 
94	However, in circumstances where Mr Manolitsis asks me to exercise a discretion (assuming for the moment it exists) in the interests of justice, it is for him to provide a compelling case that the correct or preferable decision is not to disqualify Elevated or to impose a fine.  
95	As is apparent, there is no evidence before me as to how the carprofen could have got into Elevated’s system after the race and before the blood test was taken.  In the absence of evidence of that kind and in the absence of explicit evidence from Mr Manolitsis as to when he administered the carprofen, I find the most compelling and probable explanation for it being detected in the more sensitive blood test is that the carprofen came from Mr Manolitsis’ administration of that drug in the period 19 to 24 May 2018.  
96	I also note the comments made in Graeme Bate v Greyhound Racing Victoria, which are consistent with many decisions across the racing codes: 
It is not the concern of the Stewards, the Board or [VCAT] to be satisfied as to how a prohibited substance found its way into the subject Greyhound.  Equally, it is no defence for the relevant person charged to deny any knowledge of how the prohibited substance came to be detected; or that their practices and procedures were appropriate and had not changed.
97	The interests of justice would not be served by not disqualifying Elevated and setting aside the fine in those circumstances. 
The Withholding Guidelines 
98	Mr Manolitsis says that, despite taking an extremely conservative approach to treating Elevated and stopping administration around 120 hours before the race, she tested positive.  
99	His counsel contended that it would be in the interests of justice not to order disqualification as Mr Manolitsis was ‘morally blameless’ because: 
•	He acted in ‘total compliance’ with the known Withholding Guidelines;
•	He also acted on the basis of direct veterinary advice in the interests of the welfare of the greyhound;
•	He had given the treatment a week (in fact at best five days) prior to the race; and 
•	No carprofen was found before the race in the urine test.
100	As summarised above, Dr Fegan took a very conservative approach to withholding periods, recommending a withholding period of 96 hours for greyhounds under his care.
101	Dr Alistair Smith, principal veterinarian and owner of Sandown Vet Clinic made a witness statement which was undated but signed.  He started by describing the appropriate therapeutic use of carprofen.  There was no dispute about that before me.
102	He referred to the recommended withholding periods and said:
5. 	It is critical to the proper, prudent health treatment and welfare of the racing greyhound that there is an awareness by veterinarian practitioners (at minimum) who advise on use of therapeutic medications, as well as in the participant population whose dogs are treated, of accurate withholding periods.  Or at least sufficiently accurate that, with safety margins, can be prudently acted on.  It is only with that knowledge that the welfare of the racing greyhound can be managed with the best available treatment options.
. . . 
7. 	If due to amended testing procedures or sampling methods known to the regulator such as greater use of blood testing at lower detection levels – there is a known increased risk of detection of (any) ordinary therapeutic substance, it is imperative that this [is] made well known at minimum to vets who prescribe those substances, but preferably also to individual participants.
103	He added that he was unaware of any communication directed towards veterinarians or more generally about any of the kinds of changes mentioned.
104	In response GRV contended:
•	Withholding Guidelines have made clear to participants there is a possibility of medications being detectable for longer periods where more detailed or sophisticated procedures are employed.  The Australian and New Zealand Greyhound Association (ANZGA) Withholding Guidelines upon which Mr Manolitsis relied are ‘covered in caveats and warnings of the very kind which [he] claims he was not given, and in respect of which further guidance ought to have been provided by [GRV]’:
•	Page 2 of those Guidelines contains a note regarding a safety margin of extra time accompanying the period of detection of each medication reported.  It also states that ANZGA provides withholding times and suggested ‘Safety Margins’ purely as recommended guidelines and makes no representation and accepts no responsibility concerning the accuracy of those and their applicability in the treatment of any particular greyhound; and 
•	The second last paragraph on page 2 of those Guidelines also notes that the results reported are ‘not to imply that the medications, and/or the metabolites, would not be detectable for a longer period than that stated . . . if more detailed or sophisticated procedures were to be employed’.
105	GRV contended that Mr Manolitsis was ‘far from morally blameless’ for having placed such significant reliance upon such expressly caveated Withholding Guidelines in his administration of a prohibited substance to his greyhound prior to the Race.
106	GRV also noted that there had been numerous cases heard by the RADB, published and available to industry participants, in which prohibited substances, particularly carprofen, had been detected in the Victorian greyhound industry following post-race blood testing.  GRV also noted the matter of Sands, where a prohibited substance was detected in a sample taken from a greyhound following a negative sample taken from the same greyhound in a different form.
107	GRV further contended that authorities make it clear that administering a prohibited substance in accordance with veterinary advice is not a defence to a breach of GAR 83(2).  Nor was that said to be a reason to wholly absolve a participant of liability, particularly given the notices available to industry participants (and veterinarians) expressly warning of the possibility of medications and their metabolites being detectable for periods longer than those indicated in administration studies it had published.  In GRV’s view, the administration of a prohibited substance in strict reliance upon the detection periods indicated on the Greyhounds Australasia website in the face of those warnings was at the participant’s own risk.
108	GRV referred me to the 2002 decision in Eric Castle v GRV (Castle).  The same arguments were relied on by Mr Castle in similar circumstances.  Mr Castle, who admitted to administering the same product to his greyhound prior to the race in question, appealed against the finding that he was guilty of the equivalent presentation offence presently under consideration.  His grounds of appeal relied upon his acting in accordance with veterinary advice.  He further contended that the increased sensitivity of detection techniques together with the known existence of trial data showing carprofen detectable for at least 48 hours, rendered the ongoing publication of the Withholding Guidelines ‘erroneous and misleading’.  
109	In rejecting these submissions and grounds of appeal, the Racing Appeals Tribunal of Victoria stated that:
The ANZGA Withholding Guidelines provide no defence and trainers have been notified of this fact and reminded of it in the industry publication ‘The Greyhound Adviser’.  These Guidelines are not intended as a recommendation to use any particular medication prior to racing, rather they are meant to indicate that certain medications contain ingredients that will give positive race-swab results if given or applied to a greyhound scheduled for racing under certain conditions.  These Guidelines are not to be treated by trainers as mandatory.  These Guidelines are indicators only.
110	I first address the question of whether testing via blood was new.  On 25 February 2020, the Tribunal made an order for GRV to produce to the Tribunal and Mr Manolitsis the number of race day or race night blood samples it had taken each calendar year from 2013 to 2018.  GRV filed a document which contained the following table:

Calendar year	Number of blood samples 	
2013	25	
2014	38	
2015	79	
2016	185	
2017	210	
2018	218	

111	Neither party made direct submissions on the table, presumably because it demonstrates that, while the numbers of blood tests were increasing over time, it was not a new practise in 2018. 
112	Dr Smith’s statement makes a number of very reasonable statements and it may well be the case that it is appropriate for the ANZGA to reconsider the Withholding Guidelines if it is correct that blood sampling will be relied on more in future given it appears to be measurably more sensitive.  
113	I think it would be unreasonable for GRV to say the Withholding Guidelines are no more than one opinion amongst many.  As indicated by the evidence before me, they clearly have greater status for veterinarians and industry participants alike.  
114	Ultimately, though, they are only guidelines and it is for participants to consult carefully with their veterinarians to ensure their greyhounds are not presented contrary to the Rules.  I agree with the conclusions in Castle on those matters. 
115	Even if I were to proceed on the basis there was some shortcoming in the Withholding Guidelines, I would also have to be satisfied that it was of such a nature or significance that the interests of justice supported an order setting aside this specific Disqualification Decision. 
116	There is nothing about this case that makes it different to the many other cases of presentation where the participant has not been found to have deliberately or recklessly administered a prohibited substance or where the participant had a rationale for being unable to explain how the substance came to be in the greyhound’s system.  
The quantity of carprofen
117	Mr Manolitsis referred to the quantity of carprofen detected (40ng/ml) as being ‘miniscule’.  
118	He submitted that there was no evidence that the carprofen actually detected in Elevated’s blood would have affected her performance even if that was the amount present during the Race.
119	Unlike the Rules in respect of some other substances, any quantity of carprofen detected in a greyhound presented to race is a prohibited substance and so within GAR 83(2).  
120	In those circumstances, the fact the quantity detected might have been small is not to the point and is not a basis for finding that it would be in the interests of justice to not disqualify Elevated. 
121	Dr Karamatic’s first report described how carprofen can positively improve condition or performance.  He said carprofen:  
is capable of affecting the condition or performance of a greyhound with any effect more likely to be positive such as by inducing an artificially pain-free state.
122	As is well known, it is the fact the relevant prohibited substance has been detected that leads to the charge and a guilty finding.  It is not necessary to separately prove that the greyhound’s performance was actually improved. 
The fine 
123	The same contentions as set out above were relied on in respect of the contention that the $1,000 fine ought to be set aside.  In addition, the submissions said:
That an offence does not have a mental element, does not mean that morality is excluded from its analysis or from analysis of its proper penalty.  On the evidence, not only is fault here not on Mr Manolitsis, there is not a [contention that] he ought have done differently, based on published guidance, while taking care of his greyhound.
124	I have already addressed the strict liability of GAR 83(2) and how the cases have consistently stated that moral faultlessness on the part of the participant is not a defence to a charge.  
125	GRV contended that the imposition of the fine was consistent with relevant prior penalties imposed for like-offences.  It also took account of Mr Manolitsis’ good record in the industry over a long period of time, which was a factor that went in his favour for the purpose of sentencing, as was his guilty plea.
126	In the absence of any further submissions as to why the fine was out of step with other decisions or otherwise inappropriate, I accept GRV’s submissions. 
127	Accordingly, I am satisfied that aspect of the RADB’s decision also ought to be affirmed.
Orders 
128	Given my findings, it is appropriate to affirm the RADB’s decision in respect of the imposition of the fine and as to Elevated being disqualified from the Race. 

A Dea
Senior Member